# Nemeth v. Auburn University

> District Court, M.D. Alabama · August 3, 2021

URL: https://www.frixlaw.com/law-library/cases/9987381

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** August 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

ALEXA R. NEMETH, )
)
Plaintiff, )
)
v. ) Case No. 3:19-cv-715-RAH-JTA
) [WO]
AUBURN UNIVERSITY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Alexa R. Nemeth (“Nemeth”) is a former walk-on softball player for the Auburn
University (“Auburn”) women’s softball team. She brings suit against Auburn for
retaliation in violation of Title IX, 20 U.S.C. § 1681 et seq., claiming that Auburn retaliated
against her when the university denied her a roster spot on the team after complaining
about, and participating in, an investigation involving sexual improprieties by the previous
coaching staff. (Doc. 27 at 2, 15-16.)
Before the court is Auburn’s Motion for Summary Judgment (“motion”), filed on
January 15, 2021. (Doc. 53.) Nemeth has filed a brief in response (Doc. 57), and Auburn
a reply (Doc. 59), making the motion ripe for resolution. For the following reasons, the
motion is due to be granted.
I. PROCEDURAL BACKGROUND
This case has a somewhat complicated procedural history. To begin, Nemeth
originally filed suit against Auburn, as well as former team coaches Clinton Myers
(“Clint”) and Corey Myers (“Corey”), and former Auburn presidents Jay Gogue, and
Steven Leath. (Doc. 1 at 2.) In her original complaint, filed on September 25, 2019,
Nemeth brought claims for: (1) Title IX sex discrimination against Auburn, (2) sexual
harassment in violation of 42 U.S.C. § 1983 against all defendants, (3) Title IX retaliation
against Auburn, (4) retaliation in violation of 42 U.S.C. § 1981 and § 1983 against all

defendants, and (5) failure to supervise in violation of § 1983 against all defendants. (Doc.
1.)
The details of the Myers’ coaching tenure with the Auburn softball team bear little
repeating given the story’s intense coverage in the media.1 In a nutshell, particularly as to
Nemeth, she believed that Corey’s individualized coaching attention, praise, and other
behavior directed toward her was done “in an effort to groom her for his other, more

nefarious, purposes” (see Doc. 27 at 9); that is, a sexual relationship.
In response to a series of motions to dismiss filed by the Defendants (see Docs. 20,
21, and 22), which were principally based on the statute of limitations, Nemeth amended
her complaint and limited her cause of action to a single count—a Title IX retaliation claim
against Auburn for depriving her of a roster spot on the team for the 2017/2018 year. (Doc.

27 at 15; see also Doc. 40.) It is solely that claim which is at issue in this case.
II. FACTUAL BACKGROUND
After receiving an invitation for a walk-on position from Corey, Nemeth enrolled
as a student at Auburn in the Fall of 2016. (Doc. 57-1 at 2–3.) Corey was the assistant head
coach at the time and is the son of the then-head softball coach Clint Myers. (Id.)

1 See generally Tom Junod, “For Auburn Softball, Joy on the Surface Obscured Darker Truths Within,”
ESPN, June 1, 2018, available at https://www.espn.com/espnw/voices/story/_/id/23596770/for-auburn-
tigers-softball-joy-surface-obscured-darker-truths-within.
During the Fall of 2016, Corey took an unexplained leave of absence from the team.
(Id. at 4.) Until that point, Corey had been giving Nemeth favorable feedback in her
development, but when Corey left, Clint criticized her level of play, at one point telling her
she “sucked” compared to another pitcher. (Id.) Nevertheless, Nemeth was given favorable

comments about her progress in front of the team but given minimal scrimmage game time.
(Id.) In the Spring, despite Clint’s negative assessments about her ability as a pitcher,
Nemeth was allowed to travel with the team to at least one conference series. (Id. at 5.)
On March 30, 2017, Corey abruptly resigned as assistant coach, apparently due to
an inappropriate personal relationship with a teammate. (Id. at 6.) Once Corey resigned,
the other coaches effectively eliminated Nemeth’s participation during practice. (Id. at 7.)

Displeased with her reduced role, the team environment, and the issues with the
coaching staff, Nemeth met with the Auburn athletic director and other staff. In particular,
Nemeth believed that Clint knowingly allowed Corey to groom and have sexual
relationships with team members. (Id. at 8–9.) Nemeth believed she, too, was being
groomed as she felt pressured to engage in inappropriate and/or sexual relationships with

Corey to receive better treatment at practice and at games. (Id. at 9.)
Nemeth and her father complained to Auburn about this situation on May 29, 2017.
(Id.) That same day, during her year-end meeting with the coaching staff, including Clint,
Nemeth was told that the coaches did not see a role for her on the team the following
season, and therefore Nemeth was removed from the roster that day. (Id. at 10.) Following

this and other meetings with university officials, Nemeth filed a Title IX complaint,
alleging Title IX and NCAA rule violations. (Id.)
Ultimately, Clint Myers retired on August 23, 2017, (id. at 13), and a new coaching
staff, led by Michael Dean, was hired shortly thereafter in early September. Almost
immediately, the new staff scheduled and conducted open tryouts. (Id. at 13.) None of the
participants made the team, including Nemeth, who was on the team the year before. (Id.;

see Doc. 54-1 at 5.)
Nemeth then left Auburn and enrolled at Elon University, where she played on
Elon’s softball team. Nemeth filed the instant lawsuit on September 25, 2019, seeking,
inter alia, damages and placement on the Auburn women’s softball team. (Doc. 1 at 23–
24.)
III. SUMMARY JUDGMENT STANDARD
Under the Federal Rules of Civil Procedure, summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Rule 56 [ ] mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of proving the absence of a genuine issue of material fact. Id. at 323. If the movant
meets this threshold, the nonmoving party must “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks
omitted).
On summary judgment, the court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). Any factual disputes will thus be resolved in the non-movant’s favor, but only

when sufficient competent evidence supports the non-moving party’s version of the
disputed facts. Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002).
However, “mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th
Cir. 1989)).

A dispute about a material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The non-
movant “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, that party must present “affirmative evidence” of material factual conflicts

to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257.
If the non-movant’s response relies on nothing more than conclusory allegations, the court
must enter summary judgment for the movant. See, e.g., Holifield v. Reno, 115 F.3d 1555,
1565 n.6 (11th Cir. 1997); Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995).
IV. ANALYSIS
Nemeth asserts Auburn retaliated against her in violation of Title IX by failing to

award her a roster spot on the women’s softball team for the 2017/2018 year. Nemeth
claims this was in retaliation for her Title IX complaints about the previous coaching staff.
Auburn, on the other hand, claims that the new coaching staff determined that Nemeth, like
the other seven individuals who tried out but did not make the team, was not a SEC-
Division I caliber softball player who could help the team. (Doc. 54 at 15; Doc. 54-1 at 4–

5.)
Title IX retaliation claims are analyzed under the Title VII burden shifting
framework. Kocsis v. Fla. State Univ. Bd. of Trustees, 788 F. App’x 680, 686 n.4 (11th Cir.
2019) (citing Bowers v. Bd. of Regents of Univ. Sys. of Georgia, 509 F. App’x 906, 911
(11th Cir. 2013)). To establish a prima facie case of retaliation under Title IX, Nemeth
must show that (1) she engaged in statutorily protected expression; (2) she suffered an

adverse action; and (3) the adverse action was causally related to her protected activity. See
Bowers, 509 F. App’x at 911; Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121,
1134–35 (11th Cir. 2020).
“Once the prima facie case is established, it creates a ‘presumption that the adverse
action was the product of an intent to retaliate.’” Gogel, 967 F.3d at 1135 (quoting Bryant

v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)). At that point, the burden of production
“shifts to the employer to rebut the presumption by articulating a legitimate, non-
discriminatory reason for the employment action.” Id. “If the employer produces such a
reason, the presumption is rebutted, and the plaintiff must then demonstrate that the
proffered reason was merely a pretext to mask retaliatory actions.” Id. (quotation marks

omitted). Further, “[t]o establish the necessary causation, a plaintiff must demonstrate that
‘her protected activity was a but-for cause of the alleged adverse action by the
[defendant].’” Gogel, 967 F.3d at 1135 (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 362 (2013)). “In other words, a plaintiff must prove that had she not engaged in
the protected conduct, she would not have [suffered the adverse action].” Gogel, 967 F.3d
at 1135 (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018)).

“Importantly, throughout this entire process, the ultimate burden of persuasion remains on
the [plaintiff].” Gogel, 967 F.3d at 1135 (quoting Sims v. MVM, Inc., 704 F.3d 1327, 1333
(11th Cir. 2013)).
Auburn concedes for summary judgment purposes that Nemeth can establish a
prima facie case of retaliation. (Doc. 54 at 14–15.) Instead, it focuses its challenge on the
pretext analysis; that is, it had a legitimate, non-retaliatory reason for not awarding Nemeth

a roster spot, which was the new coaching staff’s belief that Nemeth was not sufficiently
talented to play SEC Division I softball. (Doc. 54 at 15; Doc. 54-1 at 4–5.)
The burden borne by a defendant seeking to rebut the presumption of retaliation
established by a prima facie case is “exceedingly light.” Holifield v. Reno, 115 F.3d 1555,
1564 (11th Cir. 1997) (citation omitted). To satisfy this burden, the defendant “‘need not

persuade the court that it was actually motivated by the proffered reasons. It is sufficient if
the defendant’s evidence raises a genuine issue of fact as to whether it [retaliated] against
the plaintiff.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)
(quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)). The
defendant “need only produce admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision had not been motivated by [retaliatory]
animus.” Id.
The court concludes that Auburn has articulated a sufficiently legitimate reason for
not awarding Nemeth, a former walk-on who played, if at all, only sparingly for the
previous coaching staff, a roster spot for the upcoming season. New coaching staffs must
make assessments of their team and team needs, and previous walk-on team members are

not guaranteed roster spots through the expiration of their collegiate eligibility, especially
through the transition of a new coaching staff.
Therefore, to defeat summary judgment, Nemeth next must demonstrate that
Auburn’s stated reason was “merely a pretext to mask its real reason” to retaliate against
her for protected conduct, including the filing of a Title IX complaint, and in addition, that
but for her complaint, Nemeth would have been placed on the team roster. Gogel, 967 F.3d

at 1136; Combs, 106 F.3d at 1528. Crucially, the “but for” causation test at the pretext
stage is more demanding than the one Nemeth faced at the prima facie stage, Tolar v.
Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1294 (11th Cir. 2021) (citing Nassar,
570 U.S. 338, 362; Gogel, 967 F.3d at 1135 n.13), and requires her to show that, based on
the evidence, “one could reasonably infer that but for her protected conduct [Auburn]

would not have taken the alleged adverse action.” Id. To this end, Nemeth “is not allowed
to recast” Auburn’s proffered nondiscriminatory reason or substitute her own judgment for
that of Auburn. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
And as the Eleventh Circuit has repeatedly emphasized, if the proffered reason is one that
might motivate a reasonable defendant, the plaintiff “must meet that reason head on and

rebut it,” and cannot succeed “by simply quarreling with the wisdom of that reason.” Id.
To establish pretext at the summary judgment stage, Nemeth “must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
[] proffered legitimate reasons for [the adverse] action that a reasonable factfinder could
find them unworthy of credence.” Tolar, 997 F.3d at 1298 (citation omitted). “A reason is

not pretext for retaliation unless it is shown both that the reason was false, and that
retaliation was the real reason.” Id. Nemeth must come forward with evidence, which can
include the previously produced evidence establishing the prima facie case, that is
sufficient to permit a reasonable factfinder to conclude that the reasons given by Auburn
were not the real reasons for putting her on the team. See Combs, 106 F.3d at 1528.
Nemeth first argues that there is temporal proximity between her protected activity

and her being deprived of a roster spot.2 (Doc. 57 at 15.) Given that the operative adverse
action in this case is Nemeth’s deprivation of a roster spot by the new coaching staff in late
September 2017, and the latest instance of protected conduct was her father’s email to a
member of the Auburn board of trustees a month earlier in August 2017, Nemeth argues
that this demonstrates the retaliatory act by Auburn was “very close” in time to her

protected activity. (Doc. 57 at 18, citing Aaron v. Bd. of Regents of Univ. Sys. of Georgia,
58 F. Supp. 3d 1368, 1380 (M.D. Ga. 2014)).

2 Nemeth appears to argue for application of the “continuing violation” doctrine in an effort to back door
other incidents of retaliation, such as removal from the team, that are otherwise time-barred. (See Doc. 57
at 23.) Ordinarily, continuing violations are exceptions to the general rule requiring a timely complaint
covering discrete discriminatory acts. Short v. Immokalee Water & Sewer Dist., 165 F. Supp. 3d 1129, 1142
(M.D. Fla. 2016) (citing Nat’l R.R. Passenger Corp. v Morgan, 536 U.S. 101, 118 (2002); Hipp v. Liberty
Nat’l Life Ins. Co., 252 F.3d 1208, 1221–22 (11th Cir. 2001)). However, the sole remaining claim in this
case is the new coaching staff’s decision not to award Nemeth a roster spot, which was an issue confirmed
by the court via order dated April 20, 2020. (See Doc. 40.)
It is true that while the burden of causation can sometimes be met by showing close
temporal proximity between a plaintiff’s protected activity and an adverse action,
“temporal proximity, alone, must be ‘very close.’” King v. Sec’y, US Dep’t of the Army,
652 F. App’x 845, 847 (11th Cir. 2016) (quoting Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007)). Furthermore, “while close temporal proximity between
the protected action and adverse employment action is evidence of pretext, it is not
necessarily sufficient alone to establish pretext.” Id. (citing Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006); see also Tolar, 997 F.3d at 1299
(citing Gogel, 967 F.3d at 1137 n.15) (“[w]hile close temporal proximity between the
protected conduct and the adverse [] action can establish pretext when coupled with other

evidence, temporal proximity alone is insufficient.”) (emphasis added).
Auburn does not appear to quibble with the temporal proximity issue. Instead,
Auburn accurately claims that Nemeth must produce something more.
That “something more” requirement proves to be a stumbling block for Nemeth.
Though she does advance the following five points, including (1) Nemeth’s continued

presence on the roster displayed on the team website as late as July 2017; (2) a general
custom that walk-on players who were on the team for one season were not required to try
out the following year; (3) differential treatment given to two other walk-on players who
did not make Title IX complaints; (4) the fact that Nemeth later made the softball team at
Elon University; and (5) Auburn’s suspicious actions in hiring a new coaching staff and

making personnel and procedure changes following the disposition of Nemeth’s Title IX
appeal, none are sufficient to demonstrate pretext.
The problem for Nemeth as to all of these is simple: she was assessed by and not
awarded a roster spot by an entirely new coaching staff that was retained in September
2017. It was largely irrelevant that Nemeth appeared on the team roster as late as July

2017, or that the previous coaching staff had a custom of not requiring walk-on members
to try out each year. Indeed, coaching staffs manage team rosters in different ways, and
Nemeth offers no evidence whatsoever that her experience was out of the norm for walk-
on players and new coaching staffs.3 After all, the roster spot expectations of a walk-on
player are not equivalent to those of a scholarship player.
But that is not the only problem with Nemeth’s counterpoints, which also fail to

identify any other similarly situated players who were treated more favorably than Nemeth.
See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1223-24 n.9 (11th Cir. 2019)
(Although the comparator analysis is conducted at the prima facie step of the McDonnell
Douglas burden-shifting analysis, it can also “of course be used” to demonstrate pretext at
the third step.). For example, Nemeth contends that there were two other walk-on players

who were allowed to remain on the team without tryouts despite not having engaged in
protected conduct. (Doc. 57-1 at 13.) But neither individual is a proper comparator because
neither individual was on the team in the Fall of 2017—one individual’s eligibility had
expired, and the other did not return to the team following the Spring 2017 season. (Doc.

3 Nemeth’s assertion that Coach Dean’s team tryout was “rushed,” (see Doc. 57 at 19), is conjectural, and
as such, the court will not consider it. See Williams v. Harco Drugs, Inc., 896 F.Supp. 1150, 1154 (S.D.
Ala. 1994) (“suspicions [ ] do not create a triable issue of fact.”); Pace v. S. Ry. Sys., 701 F.2d 1383, 1391
(11th Cir. 1983) (“A plaintiff, when faced with a motion for summary judgment, cannot rely on attenuated
possibilities that a jury would infer a discriminatory motive[.]”).
59-1 at 1.) Further, Nemeth provides no evidence that either of these individuals were
lesser skilled players who were awarded roster sports by the new coaching staff.
True, “a plaintiff also may show pretext by identifying an [individual] outside of the
protected class who engaged in comparable misconduct but who received preferential

treatment.” Terry v. Laurel Oaks Behav. Health Ctr., Inc., 1 F. Supp. 3d 1250, 1278–79
(M.D. Ala. 2014) (citing Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1276–77 (11th Cir.
2008)); see Walker v. St. Joseph’s/Candler Health Sys., Inc., 506 F. App’x 886, 889 (11th
Cir. 2013) (“A typical means of establishing pretext is through comparator evidence.”)
(citation omitted). But, the comparator must be similarly situated “in all relevant respects,”
Terry, 1 F. Supp. 3d at 1279 (citing Holifield, 115 F.3d at 1562). And here, neither

individual fits the bill for a similarly situated comparator for pretext purposes.
Nemeth also argues that her ability to obtain a roster spot on the Elon University
softball team demonstrates that she was qualified to play on the Auburn team. But
undermining that point, in Nemeth’s own complaint, she acknowledges that the level of
skill required to play at Auburn does not equate to the level of skill needed to play at Elon.

(See Doc. 27 at 16) (“That school, while a fine institution of higher learning, is not on the
same level athletically as an SEC school.”). Indeed, as it is axiomatic that federal courts
do not sit as super-personnel departments that reexamine an entity’s business decisions,
see Chapman, 229 F.3d at 1030, federal courts also do not sit as super-coaching staffs that
reexamine coaching decisions concerning talent, skill, and what constitutes the level of

play necessary to succeed in the SEC. The court’s inquiry is limited to whether Auburn
gave an honest explanation of its behavior. Nemeth does not provide this court a reason to
question the new staff’s explanation for Nemeth’s team tryout evaluation, especially when
Nemeth previously was a walk-on player who played very little, if any, on the previous
year’s team for a different coaching staff.4
Finally, Nemeth argues that the new coaching staff was under the thumb of Auburn

athletics administrators who wished to retaliate against Nemeth. Specifically, Nemeth
argues that it is “reasonable to believe” that the administrators were involved in retaining
the new staff and that the new staff, in turn, retaliated on the administration’s behalf. (See
Doc. 57 at 18–19.) Nemeth also avers that Auburn suspiciously changed its Title IX
policies and procedures less than two months after denying Nemeth’s Title IX appeal, and
further, that Auburn “cleaned house” by firing several athletic administrators. (Doc. 57 at

20.) But all of these arguments present merely innuendo and conjecture and are insufficient
to defeat summary judgment. See Holifield, 115 F.3d at 1564 n.6 (“Conclusory assertions
. . . in the absence of supporting evidence[ ] are insufficient to withstand summary
judgment.”); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“[C]onclusory allegations without specific supporting facts have no probative value.”)

(citations omitted). Nemeth presents no basis in the record to support the inferences she
asks the court to draw about the new staff’s retention and Auburn’s actions following her
Title IX appeal, and further, does not challenge the new coach’s (Dean) testimony that he
was not influenced by anyone outside the coaching staff when he made his decision to

4 Perhaps if Nemeth was being evaluated by the same coaching staff (i.e., the Myers) that previously invited
her to Auburn and awarded her a roster spot as a walk-on, Nemeth’s arguments would carry more weight.
But that is not the set of facts presented here.
leave Nemeth off the team, as he did with the seven others who participated in tryouts. (See
Doc. 54-1 at 5.)
Having failed to demonstrate that Auburn’s stated reason for not awarding her a
roster spot on the softball team for the 2017/2018 season was a pretext to mask a retaliatory

motive, Nemeth has failed to show that a reasonable jury could find that but for her Title
IX protected conduct, she would have been awarded a roster spot on the team. Therefore,
Auburn is entitled to summary judgment on the retaliation claim.
V. CONCLUSION
For the foregoing reasons, it is

ORDERED that the Motion for Summary Judgment (Doc. 54) is GRANTED in
favor of Auburn University.
DONE, on this the 3rd day of August, 2021.

/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987381. Public record. Not legal advice.